Ward v. Ramsey

146 Conn.App. 485

77 A.3d 935

Albert WARD, Administrator (Estate of Elbart Ward)

v.William RAMSEY et al.

No. 34905.

Appellate Court of Connecticut.

Argued June 3, 2013.

Decided Oct. 29, 2013.

Ikechukwu Umeugo, West Haven, for the appellant (plaintiff).

David J. Robertson, with whom, were Heidi M. Cilano and, on the brief, Azadeh Rezvani, Bridgeport, for the appellees (defendants).

DiPENTIMA, C.J., and SHELDON and BISHOP, Js.

SHELDON, J.

In this medical malpractice action, the plaintiff, Albert Ward, administrator of the estate of Elbart Ward (decedent), appeals from the summary judgment rendered in favor of the defendants, William Ramsey, a physician, and Connecticut Gastroenterology Consultants, P.C., on the basis of the trial court's earlier preclusion of the testimony of his expert witness, a board certified gastroenterologist, that the defendants' professional negligence proximately caused the death of the decedent.¹ We conclude that the trial court improperly precluded the plaintiff's proffered causation testimony, and thus reverse the judgment of the court.

On April 15, 2009, the plaintiff commenced this action against the defendants, alleging negligence in the care and treatment of the decedent. By way of an amended complaint dated July 24, 2009, the plaintiff alleged that on July 27, 2007, while the decedent was a patient at the Hospital of St. Raphael in New Haven, Ramsey, a board certified gastroenterologist, treated the decedent for dysphagia by the insertion of a percutaneous endoscopic gastrostomy (PEG) feeding tube that perforated the decedent's small intestine or bowel.² The plaintiff alleged that, followingthis procedure, Ramsey failed to monitor the decedent, and thus failed to recognize that the decedent was exhibiting signs and symptoms of a perforated bowel, including severe abdominal pain and a distended abdomen. The plaintiff further alleged that, because of Ramsey's failure to monitor the decedent postoperatively and his consequent failure to recognize the complications arising from the insertion of the PEG feeding tube, Ramsey failed to obtain a timely surgical consultation, and thereby caused delay in further treatment, as a result of which the decedent developed sepsis, suffered multiorgan failure and, ultimately, died on August 13, 2007.

On December 2, 2009, the plaintiff disclosed William M. Bisordi, a board certified gastroenterologist, as an expert witness who would testify at trial as to the defendants' deviation from the standard of care and causation. On December 11, 2009, the plaintiff filed a revised disclosure of Bisordi. The defendants deposed Bisordi on June 2, 2011. At his deposition, Bisordi opined, inter alia, that, following the insertion of the PEG feeding tube, Ramsey failed to recognize a complication arising from it, specifically a perforation of the bowel, and that this failure to recognize the perforation ultimately caused the decedent's death. Bisordi testified that if Ramsey had examined the decedent within a couple of hours after the procedure, that complication would have been realized, and “then the window [of] opportunity to treat that complication would have allowed the patient to be treated and not subsequently develop peritonitis, multiorgan failure, sepsis and death.”

On June 14, 2012,³ the defendants filed a motion in limine seeking to preclude Bisordi from testifying on the issue of causation on the ground that he was not qualified to testify on that subject in this case because only a surgeon could competently testify as to the decedent's likely “surgical outcome,” and he is a gastroenterologist, not a surgeon. On June 26, 2012, the trial court held a hearing on various motions in limine filed by the parties. Following argument by counsel, the court granted the defendant's motion in limine to preclude Bisordi from testifying as to causation and issued a written order stating: “The plaintiff has provided no evidence that Dr. Bisordi is qualified to testify as to proximate cause, which, under the facts of this case, requires the expert testimony of a surgeon.” The defendants thereafter moved for summary judgment on the ground that the plaintiff could not make out a prima facie case because he did not have an expert witness to testify as to proximate causation of the decedent's death. The court agreed with the defendants, and thus granted their motion for summary judgment. This appeal followed.

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment.... Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary.” (Citations omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012).

Although our review of the trial court's decision to grant the defendants' motion for summary judgment is plenary, that decision was based upon the court's prior evidentiary ruling precluding Bisordi's causation testimony, which the plaintiff challenges on appeal. “The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion.... The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions.... The court's decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law.... Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.... It is well settled that [t]he true test of the admissibility of [expert] testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter; but it is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience [of] any aid to the court or the jury in determining the questions at issue.... Implicit in this standard is the requirement ... that the expert's knowledge or experience must be directly applicable to the matter specifically in issue.” (Internal quotation marks omitted.) Milton v. Robinson, 131 Conn.App. 760, 772–73, 27 A.3d 480 (2011), cert. denied, 304 Conn. 906, 39 A.3d 1118 (2012).

With that standard of review in mind, we turn to the legal principles pertaining to medical malpractice cases. “[T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury.... Generally, the plaintiff must present expert testimony in support of a medical malpractice claim because the requirements for proper medical diagnosis and treatment are not within the common knowledge of laypersons.... All medical malpractice claims, whether involving acts or inactions of a defendant physician, require that a defendant physician's conduct proximately cause the plaintiff's injuries. The question is whether the conduct of the defendant was a substantial factor in causing the plaintiff's injury.... This causal connection must rest upon more than surmise or conjecture.... A trier is not concerned with possibilities but with reasonable probabilities.... The causal relation between an injury and its later physical effects may be established by the direct opinion of a physician, by his deduction by the process of eliminating causes other than the traumatic agency, or by his opinion based upon a hypothetical question....

“To be reasonably probable, a conclusion must be more likely than not.... Whether an expert's testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert's testimony.... An expert ... need not use talismanic words to show reasonable probability.” (Citations omitted; internal quotation marks omitted.) Sargis v. Donahue, 142 Conn.App. 505, 512–13, 65 A.3d 20 (2013). There are no precise facts that must be proved before an expert's opinion may be received in evidence. See Waldron v. Raccio, 166 Conn. 608, 614, 353 A.2d 770 (1974).

“To prevail on a negligence claim, a plaintiff must establish that the defendant's conduct legally caused the injuries.... As [our Supreme Court] observed ... [l]egal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation. The first component of legal cause is causation in fact. Causation in fact is the purest legal application of ... legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct.... The second component of legal cause is proximate cause, which [our Supreme Court has] defined as [a]n actual cause that is a substantial factor in the resulting harm.... The proximate cause requirement tempers the expansive view of causation [in fact] ... by the pragmatic ... shaping [of] rules which are feasible to administer, and yield a workable degree of...